United States Family Law
In few areas has American law diverged as readily and completely from English common law as in this branch of law. In common law, primogeniture, the exclusion of non-uterine children (half – blood), the incapacity of the married woman, were founded on the basis of a family life that presupposed the existence of a landed aristocracy. It should be added that adoption, legitimation and emancipation were unknown, that a true divorce could only be obtained with an act of parliament and for different reasons depending on whether it was the husband or the wife. All these elements were the result of the special evolution of feudal society in England and presented an unmatched complex in other countries.
The conditions of life in the American colonies were quite different and family law had to begin to adapt immediately. As mentioned, birthright was rare and soon disappeared altogether. It is probable a priori that even the right of illegitimate and non-uterine children was not strictly observed anywhere. And in the sec. XIX the reform movement quickly established itself.
Under common law, the husband’s duty to provide for his family was merely a moral obligation with no direct or indirect action. This rule was applied by some American courts, but repudiated by others as contrary to reason and fairness. In almost all states, however, the matter was soon regulated by law. Children can now claim alimony directly and third parties who provide them can retaliate against parents under a quasi-contract.
Similarly, the continental European norm was accepted in the United States which recognized the relationship of the illegitimate child with the mother and allowed its recognition. Legitimation by subsequent marriage, the subject of a famous controversy between common law and canon law, has been introduced by law in almost all states. On the contrary, the legitimation procedure has been greatly facilitated; in some cases, public oral recognition is sufficient. Finally, in a few jurisdictions, the illegitimate have been equated with the legitimate in every respect, including inheritance from the father.
True adoption was known in common law and was soon introduced in the United States. Until recently, the only existing adoption in England was the de facto acceptance of a child into a family, which created only a moral obligation. But for American law, adoption is a full adoption and creates a legal relationship of paternity between the adopter and the adopted, while it does not otherwise change any of the family relationships of the parties.
The most important legal changes were those affecting the assets of the married woman. The extraordinary incapacity of the married woman has always been one of the most curious anomalies of the common law: the legal personality of the wife was almost completely absorbed by that of her husband, even for the crimes she committed. The contracts made by the wife were void, her assets were invested by her husband, the wife’s lands administered by her husband without reckoning, and she could not actively or passively sue without him.
However, it must be remembered that these incapacities existed only partially in the maritime centers, and that from these – especially from London, Lincoln, Bristol – most of the settlers came. But whatever the influence of this on the evolution we have briefly outlined, attempts to change the norms of the common law were soon made. The first statute that affirmed the married woman’s real estate rights appears to have been a Mississippi in 1839, followed by New York in 1840. Since then all states have abolished common law disabilities, but in many of these incapacities have been roughly abolished. The rule prevails that the laws derogating from the comvon law must be interpreted strictly. Therefore in many states unexpected survivals and vestiges of the ancient situation are encountered.
Widow protection was carried out in common law by a special system – the dover system – not to be confused with the dotal system. It consisted of the life annuity of one third of the landed property owned by the husband at any time during the marriage; annuity which the husband could not deprive his wife of by will. Only her consent to a transfer, proven by her signature on the deed, could extinguish her rights to the dower.
It cannot be said that this system has been effective. Many states, following the English example, have abolished it in practice, and allow dower only in the case of ab intestato succession ; others have formally abolished it, replacing it with a legitimate one. In some western and southern states, Spanish-style community of assets has been introduced. This communion is generally a communion of purchases only, and the laws of these states have developed with peculiar differences, thus increasing the confusion, because in the United States the movement of the population is frequent and people who have property purchased in a state where it does not apply. communion often transfer their domicile to a state in which it exists.
But, despite notable differences, in the matters mentioned up to now one can still speak of a general law prevalent throughout the United States; while in other branches of family law the differences are so great that it is impossible to speak of an American law, except in a completely negative sense.
The rules governing the ability to marry also show striking differences. Consent is required in many states up to 21 for men and 18 for women, but it drops to 16 and 14 in some states and this was the prevailing age limit in the south until very recently. Furthermore, state laws also differ in determining the effect of marriage under the age of majority: in some places it is voidable, in others null, while in still others it is valid, with parental consent.
The impediments of inbreeding and affinity are regulated so differently in so many details that very little can be said in general. Marriage between ascendants and descendants is prohibited everywhere, but simple affinity is considered to be the equivalent of inbreeding only in some states. Likewise, marriages between uterine and uterine brothers and sisters, or between uncle and nephew (except in Rhode Island) or between aunt and nephew, are prohibited everywhere; but about half of the states forbid weddings between first cousins, while the other half allows them; and in some other state, the list is even longer. In England, a list of forbidden degrees prevailed for a long time and aroused long and violent discussions until 1912: among the forbidden marriages were those with the sister of a deceased wife or with the widow of a brother.
An impediment of a peculiar nature due to the conspicuous number of belonging to colored races is that of the mixing of races (miscegenation). In about two thirds of the states – mainly those of the south and west – the marriage between Whites and Negroes or between Whites and Mongolians is null. But, even here, there are great differences regarding the consequences of this disability. In some states these marriages are recognized if they have been validly celebrated elsewhere; in others, they are considered void under any circumstances.
Prominent examples are provided by marriage and divorce. Divorce by legislative decree existed in the United States, and was a legacy of English divorce by parliamentary act, but in many states it was abolished by the constitution. In all states – except South Carolina – a divorce can be obtained following a court action and this is the full divortium a vinculo matrimonii. But the causes for which it can be obtained are very different. Many of the eastern states maintain the rule that divorce can only be granted in the event of adultery. But in all, both sexes have the same rights and the wife can claim the same reasons as her husband. In most states, however, the list of causes for divorce is much longer. Other adultery, the most frequently recognized causes are neglect and mistreatment. The duration of the abandonment starts from a minimum variation from one to three years, and the cruelty required often consists of acts of physical brutality such as to make cohabitation dangerous, but just as often it is only “moral mistreatment” (mental cruelty), the appreciation of which leaves ample discretion to the judges. But no consensual divorce is allowed in any state; on the contrary, the fact of the existence of a mutual consent would make the action susceptible to being suspected of collusion, and this is considered as a crime against the administration of justice. Nonetheless, it is well known that very many of the divorces granted, both in the states which recognize adultery as the sole cause and in the “liberal” states which recognize multiple causes, are in reality consensual. Nor is it easy for the judge to determine this fact, where the defendant is in default. In certain social classes, divorce is very frequent, and restrictive laws have remained powerless.
The unseemly haste with which divorce is followed by a remarriage, legislation has been opposed in various ways. One was to prohibit the party, for whose fault the divorce was pronounced, from contracting a new marriage during the life of the other or for a certain number of years. But since this ban was ineffective outside the borders of the single state, it was generally abandoned. Another way is to first grant only an interlocutory decree, which becomes final only after a set period, usually one year. In the interval the parties are still united in marriage and new marriages would constitute bigamy.
To the inconveniences created by legislation, evaded so easily and so frequently, are added those created by the federal system itself. Each state, as we have seen, is – within the norms of the federal constitution – completely autonomous, especially with regard to its civil, commercial and criminal law; however, there are many similarities and many common basic principles. But in divorce the differences are far more numerous than the similarities and contiguous states, with the same social and economic conditions, can have very different laws in this matter. Consequently, moving to another state to evade more restrictive laws than the one in which the parties are actually domiciled, although it is manifestly done in fraudem legis, it is common and apparently irremediable. This evil is further compounded by the laxity of laws in some states (eg, Nevada, South Dakota, Florida) regarding proof of domicile based on required length of residence. In Nevada, six weeks are enough, and the assertion of the interested party is sufficient as proof of the intentional element. As a result, Reno, Nevada has become a Mecca for divorcees, and we see the indecent spectacle of a state actively competing with others to secure this kind of legal business.
The confusion was increased by the difference in the recognition of these divorces in other states. The federal constitution requires states that each provide “full trust and credit” to the judicial decisions of others. There is also the principle of international law, of reciprocity, which also induces a state to recognize the judgments of another. But many states have refused to apply both the constitutional rule and the international rule, in these cases, whenever they were certain that the domicile was not acquired in good faith or that the cause of the divorce was fundamentally contrary to the principles of the own legislation. The condition of persons who in one state are united in marriage, while in another they are free, or guilty of bigamy, it is considered by many to be a manifest scandal. Evidently the condition of the children of these various marriages is not only legally uncertain but also deplorable both from a social and a psychological point of view.
Uniform laws on “divorce jurisdiction” and “escape from marriage” have so far only been recognized in very few states; and for now not many are likely to be willing to welcome a uniform divorce law.